Certain family members of principal U nonimmigrant status (U-1 visa) holders, who are living either in the U.S or abroad, may be eligible to apply for green cards when the principal applicant does so -- even though they were left out of the original application for U status or the relationship arose after it was granted. The technical term for this is that they adjust their status to lawful permanent resident (LPR).
This article covers the eligibility requirements for petitioning for permanent residence for a U-1 Nonimmigrant family member. The paperwork part of the process must be started by the U-1 nonimmigrant him or herself, so we'll address this discussion to that person and focus on the initial petition (the form that the U-1 holder must complete to request that his or her relative be granted LPR status) that begins the process.
The paperwork involves the U-1 nonimmigrant filling out Form I-929, Petition for Family Member of U-1 Nonimmigrant. Your immigrating family member will then fill out Form I-485, Application to Register Permanent Residence or Adjust Status to U.S. Citizenship and Immigration Services (USCIS). For more information on this and other aspects of the process, see the articles on the "U Visas for Crime Victims Assisting Law Enforcement" page of Nolo's website.
There are five requirements that must be met before someone with U-1 status can petition for a green card on behalf of a family member:
Each of these requirements is discussed in more detail in the sections below.
Only U-1 nonimmigrants, meaning the principal applicant who filed the original U visa application, can file an I-929 petition for family members. Derivative U visa holders cannot petition for their own family members to become U.S. LPRs.
USCIS wants to make sure that the principal applicant has adjusted status from U-1 status to a green card holder ("LPR") before granting status to that person's family members. Therefore, if you are a U-1 holder and are interested in filing an I-929 for a family member, you must wait until your AOS application is pending or has already been approved by USCIS.
If you are a U-1 holder over 21 years of age (and, as mentioned above, you are in the process of adjusting status or have already obtained a green card), you may file an I-929 to help your spouse and unmarried children under 21 years of age receive U.S. residence. If you are under 21 years old, you may file an I-929 petition for your spouse, your unmarried children under 21 years of age, and your parents.
This procedure is not meant to help family members who had already received U nonimmigrant status (most likely by having been included on your original application) but whose U status was revoked or expired before they were able to file for AOS or an extension of their U status. These relatives are not eligible to apply for a green card through the I-929 process.
Who is this procedure meant to help? Primarily, relatives who either were omitted from the original U visa application, if for example your relative abroad was not in a position to join you in the U.S when you originally filed your U visa application; or relatives who only recently became a qualifying family member, like a new spouse.
Remember that most of the family members for whom you could potentially file an I-929 petition, including your spouse, parents, and children, probably could have obtained U visas as your derivatives had the relationship existed at the time you filed your original U visa application. A common example of when one would file an I-929 petition, therefore, is if the person got married while in U-1 status.
To successfully petition for your family member, you must establish that either you or your relative will suffer extreme hardship if not allowed to stay in or enter the U.S. to join you.
USCIS evaluates extreme hardship on a case-by-case basis, taking into account the particular facts and circumstances of each case. If the qualifying family member for whom you are applying is in the U.S, you will have to demonstrate that removal of this person will result in a degree of hardship to you or to the person beyond that typically associated with removal.
USCIS takes into account the fact that you are applying as a crime survivor in assessing hardship to you and your family member. The agency will consider how you and your family member will be affected if you remain in the U.S. without your relative, as well as how your lives would be affected if you left the U.S. to join your relative in the event he or she is removed from this country or not allowed to enter the United States.
USCIS will consider a variety of factors when making an extreme hardship determination, including those that relate to you having been a victim of a crime. For example, the agency will assess the nature and extent of the physical or mental abuse you suffered as a result of having been a victim of criminal activity, any risk you have of being harmed by the perpetrator if you have to return to your home country or any loss of access to mental health or medical services for victims if you return to your home country, among others.
Furthermore, USCIS will consider any other relevant factors, so it's helpful to also include information about extreme hardship to your relative. Evidence of how long your family member has lived in the United States, medical issues he or she has, and treatment the relative receives in this country but might not have access to abroad, or fears he or she has of remaining in or returning to the home own country, are all examples of what might be relevant to showing extreme hardship to a family member.
USCIS can ultimately decide whether or not your relative deserves to have this petition granted. That's what is meant by this being a "discretionary" decision, as opposed to one where USCIS must approve the case if it meets the basic requirements.
In making a discretionary decision, USCIS will review your family member's file to determine whether there are any negative issues USCIS needs to take into account before granting the petition. If your relative has no negative immigration or criminal history, USCIS will likely exercise discretion favorably. However, you should still request that USCIS exercise discretion in the person's favor. To do that, you will need to include a signed statement by the family member along with evidence to establish your relative deserves this petition.
You do not need to establish that the family member is admissible to the U.S., as it is not a requirement for approval of the I-929 petition. Not having to show admissibility is one of the great benefits of applying for lawful permanent residence in this manner. Relatives who otherwise might not have any immigration relief available to them because they have multiple unlawful entries, for example, may still be eligible to obtain green cards through this process. USCIS will, however, consider any inadmissibility issues when determining whether to make a favorable exercise of discretion and approve the I-929. If the family member has inadmissibility issues or other adverse factors in his or her background, you will need to present evidence of positive equities that would offset these.
Depending on how serious the adverse factors are, USCIS may want to see evidence that denying the family member status would result in "exceptional and extremely unusual hardship" (as opposed to mere "extreme hardship"). If your family member has a serious criminal history; for example, has been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, multiple drug-related crimes; or is the subject of security or terrorism related concerns, USCIS is unlikely to exercise discretion in the person's favor.
Helping a family member who wasn't a derivative on the original U visa application obtain residence can be a complex process. This is especially true if the family member is considered inadmissible or has a criminal record or other adverse factors in his or her case. An experienced immigration attorney can help evaluate eligibility and prepare the necessary application materials.